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Civil Revision Application No. 260 of 1971, decided on 23rd October, 1979.

-- Art. 11, Sched. II and Arbitration Act (X of 1940), Ss. 30 & 39..--Order setting aside or refusing to set side an award under sec tion 30 of Act X of 1940-Not a decree-Appeal against such order, held, maintainable.-[Appeal (civil)].

Ram Autar v. Rum Samujh A I R 1932 Oudh 282 and Mrs. Mumtaz Mallik v. Taxing Officer P L D 1969 Dacca 803 ref.

--- S. 115 and Arbitration Act (X of 1940), S. 10 (3)-Revisional jurisdiction-Question whether adequate opportunity provided to applicant to fully cross-examine respondent when his statement recorded by Umpire-Question, held, not such as to be examined in revisional jurisdiction.

M. G. Dastgir for Applicant.

Respondent (absent).

Date of hearing : 23rd October, 1979.

This revision application arises out of the following facts. On 21st July 1964 the respondent filed Suit No. 367/1964 against the applicant for recovery of a sum of Rs. 6,713.70. During the pendency of the suit the subject matter of dispute in the suit was referred to two Arbitrators. However, the two Arbitrators differed in their decision, consequently the matter was referred to the Umpire Mr. Abdul Karim Siddiqui for decision. After hearing the parties the Umpire gave his award on 22nd December, 1967 directing that the applicant pay to the respondent a sum of Rs. 6,692.20 with 6 % interest from the date of suit until payment. When the award was filed in the Court the applicant submitted objections and prayed for setting aside of the order. The learned- trial Court, how ever, dismissed the objections filed by the applicant and by order dated 3rd May, 1968 refused to set aside the award directing that the decree be passed in terms thereof.

2. Aggrieved by the aforesaid order the applicant filed appeal under section 39 of the Arbitration Act before the District Court, Karachi, which was ultimately disposed of by the learned IInd Additional District Judge, Karachi. The learned Judge in the Appellate Court besides repelling the contentions of the applicant on the merits also came to the conclusion that the appeal was not maintainable in so far as ad valorem court-fees were not paid on the memo of appeal. In the view taken by the learned Appellate Court, Article 11 of Schedule I1 of the Court Fees Act was not attracted in the case inasmuch as the order appealed against has the force of a decree and consequently ad valorem Court-fees were payable. In this view of the matter the learned 1Ind Additional District Judge, Karachi by his impugned judgment dated 29th March 1971 dismissed the appeal as not maintainable. The applicant being aggrieved has come up in revision before this Court.

3, Mr. M. G. Dastgir, learned counsel appearing for the applicant first contended that the learned Appellate Court had misconstrued the law and held the appeal not maintainable on the ground of court-fees. In his submission an appeal under section 39 of the Arbitration Act is directed against an order of the Court refusing to set aside the award and notwithstanding the fact that the order directs the preparation of decree in terms of award, its character is not changed as an order, not having the force of a decree. Article 11 of Schedule 11 of the Court Fees Act, 1870 is in the following terms :-

(a) to any Civil Court other Eight annas.

than a High Court, or to

any Revenue Court or Exe

cutive Officer other than the

High Court or Chief Con

11. Memorandum trolling Revenue or Executive

of appeal when Authority.

the appeal is (aa) to the Central Board of Twenty-five rupees.

not from a Revenue under section 188

decree or an of the Sea Customs Act,

order having 1878 or section 35 of the

the force of a Central Excises and Salt

decree, and is Act, 1944.

presented.

(b) to a High Court or Chief Two rupees.

Commissioner, or other

Chief Controlling Executive

or Revenue Authority.

The tare perusal of the provisions of this Article shows that an appeal from an order not having the force of a decree is chargeable with fixed Court-fees prescribed therein, whereas appeals from decrees are governed by Article 1 of Schedule 1 of the Court Fees Act which provides for the payment of ad valorem Court fees on the subject matter in dispute. Learned counsel has referred me to Ram Aurar v. Ram Samujh (A I R 1932 Oudh 282) which was a case decided before the coming into force of the Arbitration Act, 1940, However, it seems to me that the provisions of Schedule 11, paras. 20 and 21 of the Code of Civil Procedure, 1908 which were considered in that case are in pari materia with the relevant provisions of the Arbitra tion Act, 1940. The facts in the reported case were that the plaintiff bad made an application under rule 20, Schedule 11, C. P. C. to have the award filed in Court. The Court after necessary enquiry ordered the award to be filed and pronounced judgment according to the award. The judgment was followed by a decree prepared in due course. The defendant filed an appeal against the order and paid fixed court-fee. Upon a question being raised whether art valorem court-fee on the value of the appeal was chargeable, it was held that an order filing or refusing to file an award can neither be regarded as a decree nor as an order having the force of a decree. Consequently, it was ruled that such appeal falls within the purview of Article 11 Schedule II of the Court Fees Act. On parity of reasoning, an order setting aside or refusing to set aside an award under section 30, Arbitration Act by its own force does not have the effect of decree, notwithstanding the fact that a decree may be subsequently prepared in terms of the award. The Full Bench of the Dacca High Court in Mrs. Mumtaz Mallik v. Taxing Officer (P L D 1969 Dacca 803) considered the question of court-fees, in somewhat similar way, in an appeal from an award passed under the East Bengal (Emergency) Requisition of Property Act, 1948. They also took the view that the memorandum of appeal from an award under the said enactment was not a decree or an order having the force of a decree. Consequently, it was held that the memo randum of appeal was chargeable with fixed court-fees under Article II Schedule 11. It, therefore, appears to me that the learned Additional District Judge had taken an erroneous view of the law in holding that the appeal was not maintainable as ad valorem court-fee on the amount of the award was not paid. However, this does not conclude the matter.

4. On the merits the sole contention raised by the learned counsel is that adequate opportunity was not provided to the applicant to fully. cross-examine the respondent when his statement was recorded by the 8 Umpire. I have perused the judgments of the Courts below and I find that this question has been thoroughly examined and a concurrent view taken that it was applicant's counsel who had abandoned the cross-examination without waiting for the orders of the Umpire on his request for reservation of further cross-examination. The learned Additional District Judge teas referred to the history of the proceedings on the previous dates of the hearing fixed before the Umpire which clearly reveals anxiety of the Umpire to give more than due opportunity to the applicant for repre sentation of his case before him. The counsel of the applicant was not justified to abandon the proceedings but nonetheless the applicant himself was given opportunity for further cross-examination, but he declined. Be that as it may, this is not a question which can be examined in the revisional jurisdiction.

5. No other point was urged by the learned counsel. In the result, I see no farce in this revision and accordingly dismiss it with no order as to costs.

M. Y. M. Revision dismissed.

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